Repeal of ’09 law harms discrimination victims

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From the Milwaukee Journal Sentinel. April 12, 2012.

We don’t think that Gov. Scott Walker and the Republicans in the Legislature have launched a war on women, as some critics allege. We’d describe it more as a “police action.”

Take four bills signed by Gov. Scott Walker last week that put new restrictions on abortions, require schools that teach sex education to promote marriage and allow districts to teach abstinence-only courses, and close the state courts to those seeking punitive damages in workplace discrimination cases. No doubt, there are many women in Wisconsin who agree with these measures, but for those who identify discrimination, abortion and teen pregnancy with women’s rights, these bills are an attack on those rights.

The Legislature would be wise to reconsider these measures when it returns to session next year. Not one of these is good public policy.

Take in particular the discrimination bill, which rescinded a 2009 law that allowed victims of discrimination to sue an employer in circuit court for compensatory and punitive damages. Victims could receive up to $300,000, depending on the seriousness of the claims and the size of the businesses. Before that law was enacted, victims could only sue for reinstatement to their jobs, back pay, costs and attorney’s fees.

Republican critics of the bill said repeal was necessary as a jobs-savings measure; that victims could still sue in federal court for such damages and that repeal would bring Wisconsin in line with neighboring states. They also implied that $300,000 could be the penalty in every discrimination case, which could cripple companies.

But on the first point, there is no evidence that the 2009 bill was a jobs killer, because no case ever went through the courts under the new law nor did legislators present evidence that it was having a chilling effect on companies. In fact, awards presented in such cases in both state and federal courts generally tend to be relatively minor and nowhere near the $300,000 cap.

On the second, federal court is a much more difficult place to sue for damages. According to Jeff Hynes, president of the Wisconsin Employment Lawyers Association, suing in federal court costs four to five times as much as suing in state court, the procedural and technical aspects of cases are more difficult to maneuver and not many cases are successful.

That expense, by the way, incurs to both plaintiff and defendant, so it’s also far more costly in money and time for businesses. Hynes said state court also offers more opportunities for settling cases before a trial, something that benefits both sides.

Of course, the result is that victims of discrimination are less likely to see federal court as a viable venue for their complaint. And reducing the other options that employees have to challenge discrimination could mean that discrimination against women and minorities is more likely to be tolerated in the workplace.

That’s unacceptable.

It’s also important to note that the ability to sue for punitive damages is important because many discrimination cases don’t involve terminations. And obviously, back pay is awarded only in the case of terminations. So as long as companies don’t fire the victims, harassment could continue and those victims would have fewer recourses against an obtuse employer. That, too, is unacceptable.

State Sen. Glenn Grothman, R-West Bend, said that repeal of the law puts Wisconsin in line with neighboring states. But according to employment attorneys, every state that abuts Wisconsin allows for compensatory and punitive damages in their state courts, so one wonders exactly what Grothman was talking about. Of course, this is the same guy who was quoted as saying that perhaps women are paid less than men because money means more to men, so maybe the question should be what planet is Grothman living on.

The 2009 law offered what Hynes called a “complete remedy” in discrimination cases, something state law had not afforded up to that point and now does not again. Victims of discrimination in Wisconsin deserve that complete remedy. The Legislature should give it back to them.